New York State Court of Claims

New York State Court of Claims

BOTTORFF v. STATE OF NEW YORK, #2008-039-077, Claim No. 112448, Motion Nos. M-72063, M-72427


Synopsis


Defendant’s motions for an order dismissing the claim are granted. The claim, which sets forth allegations that defendant deprived claimant of his right to access to the courts under the United States Constitution and the New York State Constitution, does not state a cause of action on which claimant would be entitled to recover money damages and must therefore be dismissed

Case Information

UID:
2008-039-077
Claimant(s):
CHET ALLEN BOTTORFF, in Pro Per as assignee of Alexis Torres
Claimant short name:
BOTTORFF
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112448
Motion number(s):
M-72063, M-72427
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Chet Allen Bottorff, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The claim alleges, in essence, that in a series of disputes concerning child support between Alexis Torres and his ex-wife, Rochelle Torres, the Oneida County Family Court has unfairly supported the petitions and requests of Rochelle Torres while impeding, ignoring and obstructing any petitions or requests by Alexis Torres. Claimant does not explain his connection to these disputes, but at several places in the pleading he refers to himself as the “assignee” of Alexis Torres. The claim sets forth 33 causes of action including 28 causes of action for “denial of access” and one each for civil conspiracy, prima facie tort, failure to train, failure to supervise, and negligent retention. Claimant demands relief in the form of money damages, to be paid in troy ounces of .999 fine silver; the immediate discharge of all defendants from public office; a declaration that the Court of Claims, Supreme Court and New York Criminal Courts have concurrent jurisdiction over constitutional torts; and a determination whether any criminal acts have been perpetrated.

Defendant now moves the Court for an order dismissing the claim on the grounds that claimant lacks standing to bring any action based on these events; that no cause of action for denial of access to the courts exists in the New York State Constitution; that the Court of Claims does not have jurisdiction to hear actions for money damages based on alleged violations of the United States Constitution; and that the remaining causes of action have produced no damage to claimant. It appears to the Court that claimant filed and served an amended claim in response to the motion. The chief difference between the original and amended claims is that the latter substitutes 16 causes of action with“civil/private rights” (variously racially, creed, color and gender motivated) for all but one of the original causes of action for “denial of access” and adds causes of action for fraud upon the court, retaliation, negligent hiring, and failure to properly control. Defendant moves to dismiss the amended claim on the same grounds as set forth above and upon the additional ground that any causes of action alleging violation of the New York State Constitution should be dismissed because claimant cannot meet the requirements for asserting a constitutional tort.

Initially, the Court finds that the language of the revocable assignment from Alexis Torres to claimant appears to be clear and proper (see Claim, Exhibit 1). There is no specific form required for an effective assignment; it must show the intention of the owner of a right to transfer that right to another (6A NY Jur 2d Assignments § 37). The document in question, which is signed by Alexis Torres and notarized, gives claimant “all my claims and causes of action against the State of New York and it's (sic) agents, employees and officers, in their official and public as well as in their personal and private capacity as a result of their action(s), error(s), inaction(s) and omission(s) at the Oneida County Family Court” arising from papers filed by Rochelle Torres on March 7, 2006 and all subsequent proceedings. Any tort action not grounded on personal injury or otherwise prohibited by statute is assignable (6A NY Jur 2d Assignments § 20). The critical question, however, is whether Torres, or claimant as Torres' assignee, possesses any viable claims or causes of action against the State arising from those events.

In New York, there is no per se constitutional right of access to the civil courts (see Matter of Colton v Riccobono, 67 NY2d 571, 576 [1986]), and any allegation that defendant deprived claimant of his right of access under the United States Constitution does not give rise to a cause of action that may be heard in the Court of Claims (see Will v Michigan Dept. of State Police, 491 US 58 [1989]; Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723 [1981], affd 56 NY2d 656 [1982]).

With respect to any other causes of action based on alleged violations of provisions of the New York State Constitution, claimant must specifically identify the provision in question and, further, establish (1) that the provision is self-executing; (2) that an award of money damages would further the purpose of the provision, would be necessary to make it effective and to deter government conduct, and would make the claimant whole; (3) that the provisions impose a clearly-defined duty on the State officers and/or employees; and (4) that declaratory and injunctive relief are inadequate (see Brown v State of New York, 89 NY2d 172 [1996]). The requirement that an award of money damages is necessary to make the constitutional provision effective is generally interpreted to mean that the claimant must have no other alternative remedy, either in common law or under a statute. It must be a case of “damages or nothing,” where money damages must be available if the injured party is to be provided with any remedy and future violations of the constitutional guarantee are to be deterred (id. at 192; De La Rosa v State of New York, 173 Misc 2d 1007, 1010 [Ct Cl 1997]; see also Lyles v State of New York, 2 AD3d 694 [2003]; Thomas v State of New York, 10 Misc 3d 1072(A) [Ct Cl 2005]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]). Claims of religious discrimination may be pursued under New York’s Human Rights Law (see Executive Law §296). The Court can discern no allegations that could be construed as asserting a cause of action for any viable constitutional tort.

Finally, the actions of which claimant complains appear to be actions taken by or carried out at the direction of a judge or judges of the Oneida County Family Court. Such actions are protected by absolute judicial immunity (see Swain v State of New York, 294 AD2d 956 [2002]; Weiner v State of New York, 273 AD2d 95 [2000]; Welch v State of New York, 203 AD2d 80 [1994]; Harley v State of New York, 186 AD2d 324 [1992]). This immunity is extremely broad and encompasses virtually all acts carried out in the exercise of their judicial function (see e.g. Murray v Brancato, 290 NY 52 [1943] et seq.).

Accordingly, inasmuch as the claim does not state a cause of action on which claimant would be entitled to recover money damages, defendant’s motions are granted and claim no.112448 is dismissed.


May 5, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion (Motion No. M-72063) and Supporting Affirmation of Joel L. Marmelstein, AAG, with exhibits;
  1. Reply Affirmation of Joel L. Marmelstein, AAG, with exhibit;
  1. Notice of Motion (Motion No. M-72427) and Supporting Affirmation of Joel L. Marmelstein, AAG, with exhibit;
  1. Memorandum of Points and Authorities (“Claimant’s First Argument) of Chet Allen Bottorff, pro se;
  1. Memorandum of Points and Authorities (“Claimant’s Second Argument) of Chet Allen Bottorff, pro se; and
  1. Memorandum of Points and Authorities (“Claimant’s Third Argument”) of Chet Allen Bottorff, pro se.